This article has been written by Ms. Pratibha Mittal, a 1st year B.COM.LL.B. (Hons.) student of University Institute of Legal Studies, Panjab University, Chandigarh.
Introduction
The concept of conciliation is in practice since the time immemorial. Reconciliation comes in a variety of forms that are gradually becoming understood. The role of conciliation is becoming more crucial in modern law. It is generally social in nature rather than just juridical. Legal experts are using numerous legal strategies and procedures in order to deepen the idea of reconciliation and give it legal forms. In our legal system, using a conciliation procedure to resolve a disagreement among the parties is not unusual. Since the earliest days of civilization, when there was essentially no organised and acknowledged legal system, village chiefs, or panchas, led by a Sarpanch or Mukhia, used to decide conflicts between the parties in a way that was binding on them. As civilization advanced, the system of justice as a whole developed several ways to administer justice, of which ADR is comparably a more recent idea that developed from another idea of resolving conflicts through arbitration hearings. A conciliator is just as significant and reputable as an arbitrator.
Conciliation
Part III of the Arbitration and Conciliation Act, 1996 provides provisions for the conciliation proceedings. However there is no exact definition of ‘conciliation’ given in the Arbitration and Conciliation Act, 1996. Conciliation has not been defined even in Section 89 of the Code of Civil Procedure, 1908, as amended in 1999. In terms of Halsbury’s Laws of England, “Conciliation is the process of persuading parties to reach an agreement, and is plainly not arbitration, nor is the chairman of a Conciliation Board an arbitrator.” Conciliation may be defined as a process of resolving disputes between parties in a friendly manner through non-judicial powers.
Conciliation is different from Arbitration as it does not require prior agreement between the parties. Furthermore, conciliation proceedings can take place even when parties have filed a case and the case is pending before the court.
Proceedings of Conciliation are non-advisory in nature i.e. there is no claimant/plaintiff or respondent/defendant. They are of voluntary nature as one of the parties to dispute invites the other party for the proceedings and the latter has an option to reject the same. The proceedings are flexible in nature as they can be varied at any point by mutual agreement of the parties. The conciliator cannot impose his views so the conciliation proceedings are recommendery in nature.
Who is a Conciliator?
According to Halsbury’s Laws of England, “Conciliator is described as a person persuading parties to reach an agreement.” Conciliator may be defined as a person who assists the parties to resolve disputes between them amicably. He has large number of powers to choose the procedure he has to take. According to Section 66 of the Act, he is not bound to follow procedural laws like CPC or Evidence Act. A dispute is only settled after the conciliator draws a settlement agreement which is to be signed by both the parties.
Number of conciliators
Section 63 of the Act deals with the number of conciliators required for conciliation proceedings. According to the Section there shall be a sole conciliator. But by mutual agreement, the parties may agree to appoint two or three conciliators. If the parties agreed and there are more than one conciliator, then according to Sub-section (2) all the conciliators must act jointly.
This section is based on Article 3 of UNCITRAL Conciliation Rules. Usually sole conciliator is preferred as he may act expeditiously and would provide speedy conciliation. The scope of difference of opinion among conciliators is also reduced.
Appointment of conciliators
Section 64 of the Act, which is based on the Article 4 of UNCITRAL Conciliation Rules, deals with the appointment of the conciliators required for conciliation proceedings. The Sub-section (1) provides conditions for appointment of different number of conciliators. If the parties agree with conciliation proceedings to be done by one conciliator, then the conciliator may be appointed by the parties by mutual agreement. If the parties opt for conciliation by two conciliators, then each party may appoint one conciliator. And when the parties prefer three conciliators, each party may appoint one conciliator and the third conciliator who will act as presiding conciliator may be agreed by the parties mutually.
In connection with the appointment of conciliators if the parties want to seek assistance from some institution or person, the provisions are provided in Sub-section (2). A party may ask such institution or person for recommendation of conciliator or the institution or person may directly appoint a conciliator. Such a conciliator should be independent and impartial.
Role of conciliator
The conciliator serves as the applicant’s liaison with the opposite party. Its function differs significantly from that of a judge in a typical court of law. He assists the parties in comprehending the disagreements that exist between them. He is neutral in nature. A conciliator must possess the following qualities: impartiality, integrity, honesty, equality, and patience. If he can persuade the parties in a constructive and welcoming atmosphere, the conciliation processes will be successful. To gain the parties’ trust and confidence, he must carry out his tasks and duties in a fair and objective manner. Focusing on the key topics or grounds of contention, privacy protection, open communication, and secrecy are the core principles of conciliation. He has complete authority over the conciliation process, including all conversations and communications between the parties.
Section 67 of the Arbitration and Conciliation Act, 1996, which is based on the Article 7 of UNCITRAL Conciliation Rules, describes the role of conciliator. They are listed below:
“67. Role of conciliator.—(1) The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.
(2) The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.
(3) The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.
(4) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor.”
Restrictions on Conciliator
Section 80 imposes certain statutory restrictions on the conciliator. The reason for the incorporation of this section in the Act is to safeguard the parties from the misuse of information which is obtained by the conciliator during the conciliation proceedings. The provision is based on the principle of natural justice as it demands utmost impartiality of the conciliator.
“80. Role of conciliator in other proceedings.—Unless otherwise agreed by the parties,—
(a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings;
(b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings.”
Other roles of Conciliator
Apart from Section 67 the Act specifies, implicitly, some other roles of a conciliator during conciliation proceedings. They are:
Section 65: Submission of statements to conciliator
According to this section, the conciliator may ask the parties to give him a statement specifying the dispute and points of issue. He may also ask them to submit documents, evidences or any other additional information which they consider to be relevant.
Section 69: Communication between conciliator and parties
This section gives authority to the conciliator to invite both the parties to meet him or communicate with him, together or separately, orally or in writing. The place of meeting shall be decided by the conciliator after consulting the parties.
Section 70: Disclosure of information
After the conciliator has been flourished by a party with some factual information, he should disclose such information to other party, who may present some explanation to that information. However, if the first party requested to keep it confidential, such information should not be shared with the other party.
Conclusion
Conciliation is not an unknown process nowadays. People now are taking help of conciliation proceedings more and more for speedier and efficient dispute settlement. Therefore, it is necessary that a conciliator performs his role fairly. He should act in independent and impartial manner. Objective, fairness and justice should be his principles. He should conduct conciliation proceedings in an appropriate manner.
References
- Paranjape, N. V., Law relating to Arbitration and Conciliation in India, 2013, Central Law Agency, Allahabad
- Ray, Sukumar, Alternative Dispute Resolution, 2012, Eastern Law House Pvt. Ltd., Kolkata
- Tripathi, S. C., The Arbitration and Conciliation Act, 1996, 2010, Central Law Publications, Allahabad
- Singh, Avtar, Law of Arbitration and Conciliation, 2013, Eastern Book Company, Lucknow
- Saharay, Madhusudan, Textbook on Arbitration and Conciliation, Second Ed., Universal Law Publishing Co. Pvt. Ltd., New Delhi
- Wharton’s Law Lexicon, 14th Ed., 1937
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